Defends outcoursing, he doubled down. Im proud of it. David perdue, hes not for you. In her campaign plan, Michelle Nunn admits shes too liberal and her foundation gave money linked to terrorists so nunn needed to fool george ans to win. She attacks perdue with add checkers called mostly false. David perdue spent his career creating thousands of jobs. David perdue will glincrease th economy and bring jobs to washington. Recent polls list this race as a toss up. You can race georgia debates at time online at cspan. Org. Earlier this month, legal scholars and open government advocates held a discussion on Government Transparency and reviewed Current Court cases on the nsas warrantless surveillance program. Held by the bar association, this is an hour and 35 minutes. Good afternoon and welcome. We appreciate you taking the time to be with us today. Im jim oreilly from Cincinnati Ohio and with me are distinguished presenters who will be each giving their own perspective on privacy and information law. Ive been in this field since 1972 when the field was so obscure and so few people cared about it that when i proposed a book in 1976, the four largers publishers said, nobody is ever going to care about privacy and nobody is ever going to care about freedom of information. The book is still going strong in its fourth edition. Its still a very significant item. But whats occurred in the last year and athe background for todays topical discussion about developments, whats happened could be boiled down to two words. Ed snowden. This morning at 4 15 as i was driving to the airport in cincinnati to fly here for this presentation, i was listening to the bbc, British Broadcasting Organization and bbc had on a discussion about privacy. To quote specifically, they said, whats changed now is the development of big data for spooky uses. Big data for spooky uses in the ed snowden era. Rather than trying to create our own topic. Thats about it. Well be talking about big data. Whos listening to it. Whos generating it . Whos mon etizing that big data . What the significance is for individual privacy. Back in 1972 when nobody cared and the freedom of information act is one obscure piece of legislation that was never going to go anywhere. The world has changed to ea dramatic extent to now the International Awareness of u. S. National Security Agency listening and the consequences of that privacy issue is being felt around the world. So im very pleased to join with us today here at the american bar associations Administrative Law section, annual conference of Administrative Law. Im pleased to introduce our first presenter who is the chair of government information privacy. Bernard bell. Bernie. [ applause ] thank you. Good afternoon. I wont be talking so much about big data for spooky uses but data for use by you and me. All right. So ill be talking about Public Information and access to public dock uument documents. Focusing on a few other ancillary matters and one of my copresenters will be dealing with the Public Information side of this. So i want to there have been a number of cases decided this year. There are too many to summarize in a talk to theres a rather extensive summary of many of the cases that were decided this year and decided in this era. I will concentrate on a few cases. Let me start with the definition of Agency Records because only Agency Records are subject to foya. This year there have been two notable cases on that subject. Course of action versus National Archives and Records Administration and story county. Story county which is on page ten of the materials, that involved records a local sheriff generated as a board member of the First RespondersNetwork Authority or first net. The u. S. District court in iowa held that the records were federal records and enjoined county officials from releasing them under a state Public Records act. It is responsible for the aspects of the nation wide Public Safety broadband network. First nets governing board consists of three cabinet level officials and 12 members appointed by the secretary of commerce. Sheriff storiy county sheriff Paul Fitzgerald was one of those 12 appointees. Add to this that first nets organic statute actually exempted them from foya. Fitzgerald received and sent emails regarding first net business from a story county email account. The court found that fitzgerald was a federal official for some purposes and that the messages recording first net were federal records and it didnt matter if fitzgerald had been appointed to the first net board due to his status as a local elected official. The court also rejected story countys argument that fitzgerald receipt of emails from first county officials to a story county email address constituted a third party and thursday a voluntary waiver of foya exclusion or exemption. The second case involving Agency Records deals with actually the National Archives administration. This is cause of action versus National Archives administration. Here the d. C. Circuit held that records of legislative commissions that are transferred to the National Archives are not Agency Records for foya purposes. The legislative commission here was the financial crisis inquiry commission. Rather than relying on the standard factor tax analyst control tests that generally decides the Agency Record cases, the panel held that the transfer of records from an exempt entity, mainly any sort of allege la allege legislative era. The court said that they do not use it in any way and thus any control of such documents consists solely on cataloging them and preserving them, not a micro warehouse. The d. C. Circuit says that this makes the tax analyst cases inapplicable after all of that test was designed really to distinguish Agency Records from personal materials within an employees possession. The court said that the tax analyst case is really divorced from foyas key objective which is revealing to the public how federal agencies operate and the fcic records or the Mission Records dont expose the operations of the arc yihives t the nerra of public scrutiny. I want to move on to the exemptions. Im going to focus on two of the exemptions. Exemption five and six. Exemption five, exemption disclosure documents that quote would be available by law to a party in litigation and encompasses several privileges including the president Communications Privilege otherwise known as executive privilege. Theres a case dealing with executive privilege summarized at the beginning of page 13 of the materials. There, a d. C. District judge concluded that the privilege did not protect from disclosure president oer balmoer ba obamas global development. President ial directives serve as forthal notification to agency heads in the field of National Security general requiring that agencies take some form of followup action. Pbd 6 calls for the elevation of development as a core pillar of American Power and provides specific policy guidance on implementing it. The judge concluded that pbd 6 is a nonclassified districtive that has been distributed broadly within the branch and has been distributed to decide decision making. In the judges view as policy guidance to be implemented by agencies, pbd 6 has the force of law and is the functional equivalent to executive order. The judge reasoned that the availability of the president ials privilege ensured confidentiality and here found no such need particularly given that pbd 6 does not involve a uniquely president ial duty which is a little bit odd reasoning. The court went onto say that based on the reading of the document, the judge found it was forward looking and didnt reveal the president s deliberative process. In short, the judge concluded that the president s ability to communicat communicate his final decisions privately is not implicated. There are other cases involving the deliberative process privilege but i will leave those to be covered by the materials and given the shortness of our time. I want to move onto exemption six. Exemption six alolows agencies width hold records which disclosu disclosure, there are two cases that i want to focus on. The Union Leader Case and a case called gillman. So first union leader versus the u. S. Department of Homeland Security. The summary of which starts on page 22 of the materials. The First Circuit held that the names of aliens with criminal records arrested in an immigration and Customs Enforcement or i. C. E. Sweep could be held pursuant to exemptions 6 and 7 c. The First Circuit panel held that aliens had a cognizable that no individual has a reasonable expectation of privacy of arrest by government. Convictions and arrests are matters of Public Record and also given that union leader, was not seeking to actually contact the arrestees. The court found that there was a substantial counter vailant puck li Public Interest in disclosure and noted that one of the arrestees had remained in New Hampshire till 2011 after being removed from the country in 1998 after being convicted of trespassing in 1993. The union leader could point to evidence that ice had contacted negligent in handling its removal duties. It concluded disclosure of redacted names would help investigate arrests potentially bringing to light for ices apparent torpor for removing these aliens. Gillman versus u. S. Department of Homeland Security. Summary of which begins on page 25. In that case, a District Court ordered the release of names of landowners whose property would be acquired for the border fence sup ra separating the United States from mexico. A law professor sought the names and addresses of landowners who would potentially be affected by the border wall as well as correspondence with government officials and their context with landowners. A law professor was researching the legal, historical property, environmental and indigenous impacts with the border wall. It was held under exemption 6 and also under other exemptions that i think harry will talk about. The judge concluded that noncommercial individual landowners had privacy reasons. First, disclosure might disclose landowners to unwanted media contact. Secondly, some of the emails between government officials would actually potentially reveal the owners valuation of their land and possibly the landowners financial situation. Third, some of the documents which actually reveal some specific statements by some of the land owners on their views regarding the border fence. However the judge found quote a great Public Benefit to learning the social impact of the governments construction of fall. Sh she agreed with plaintiffs that revealing the identities of landowners might shed light on the impact of the wall and the placement of the wall on indigenous communities and lower income minority communities. That is often an issue when youre talking about imminent dome inn issues. The survey actually these cases and essentially concluded that if the requester can show that theres really some substantial Public Interest in disclosing the information then generally, the case will come out in favor of width Holding Information on privacy grounds and where a persons Financial Information might be implicated such as when the governments deal with receipt of government benefits or value of property and acreage. I want to move onto reverse foya litigation which i suppose is a lot less frequent than foya litigation but theres an interesting d. C. Circuit dpras thissier. Drewowitz versus usda beginning on page 34. They are as you know apa suits seeking to enjoin a Government Agency from releasing documents that foya exempts from disclosure. So in jurovitz. D. C. Circuit held that the usda had not acted arbitrarily and capriciously in releasing information that dog breeders had submitted regarding their Gross Revenue and business volume. Now all animal dealers must complete a form 7003 which asks for the number of animal purchases and sales during a given year and Gross Revenue from activities. We saw copies of these forms, 7003s for all missouri dog breeders. The usda agreed to provide the information. The dog breeders put a sought claiming those documents should have been held in regard to exemption 4 and 6. With respect to 4, they noted the usda had reasonably concluded that the request of information was unlikely to cause competitive harm. The data on the form was too imprecise and stale for competitors to determine prices with particular breeds. With respect to exemption six, the usda had found a n nonnegligible features and whether the department was fulfilling its statutory obligation to charge reasonable and equitable fees and allow the public to properly assess whether fees were being charged in accordance with these regulations. The court found that the usdas balancing in favor of release was reasonable. Interestingly, the court also that Public Interest in disclosudisclose 7003 information can only exist in propriety. The court acknowledged in 2004 that such a showing might be required when a foya requester seek document thats would intrude on some privacy interest but said said in this case, in a reverse foya case, the plaintiff must show that the government was arbitrarily capricious in completing that balance. Let me talk about a couple of cases involving government information combination of government information. Anni acquisition. The first was this Corporation Versus hooper in which the Supreme Court legally construed the scope of protection offered by a statute that confirmed immunity on airlines for reporting suspicious behavior. Through the aviation and transportation security act, immunizes airplane employees from liability from reporting suspicious activity from tsa agents from lawsuit as long as their reports are not false. Now the u. S. Court versus sullen which congress clearly referenced in the atsa standards, the court held that even reckless statements can give rise to liability only if material false. Materially false statements are one that would have a different affect on the mind of the reader or listener from that which the truth would have produced. For purposes of a tsa immunity, courts must consider the affect of the alleged false statement on tsas behavior. Thus, a false hood thats material for a tsa purposes only if a reasonable Security Officer would consider it important in deciding upon the appropriate response to the supposed threat. Just so you know a little bit about what the case is about. Statements that the plaintiff who was scheduled to fly on a commercial aircraft was an unstable pilot in the first flight deck officer program who had been terminate that had day by his airline and expression of concern about whether the plaintiff was armed were not entirely accurate but were not the courts said materially false. The next and actually final case that ill address is a case that the judge court is hearing on this term that was decided on federal circuit and interpreted the whistle blower protection agent. The whistle blower protection agent or wpa prohibits agencies from taking adverse action against an employee on the basis of quote, any disclosure of information by an employee which the employee reasonably believes evidence of substantial and specific danger to Public Health or safety. Here is the keywords if such disclosure is not specifically prohibited by law. So the First Circuit holds that held that mcclain, the whistle blowers disclosure was specifically prohibited by law and thus not protected because it violated regulations issues under the aviation and transp t transportation security act, atsa which directs the secretary of transportation to quote, prescribe regulations prohibiting disclosure of information if the secretary decides disclosing the information would among other things be detrimental to transportation safety. Mcclain was an air martial and he leaked a text kacanceling ai martial meetings to las vegas even though at the time the department of Homeland Security was concerned about a potential hijacking. Substantively when mcclain actually leaked Something Else an a fellow fibbigured out his identity, the department discovered he had leak the first information about the las vegas missions and they fired him for disclosing sensitive information. The federal circuit concluded in the absence of any contrary argument from the parties that to follow through the wtsa prohibited provision, it must be by statute not provision. The court noted that the atsa itself nearly empowers the regulati them to associate with disclosing information, it doesnt do so directly